A prosecutor's history of discriminatory peremptory strikes, disparate questioning of black and white jurors, and not striking similarly situated white jurors established a Batson violation, the U.S. Supreme Court held June 21 in Flowers v. Mississippi.

A prosecutor's history of discriminatory peremptory strikes, disparate questioning of black and white jurors, and not striking similarly situated white jurors established a Batson violation, the U.S. Supreme Court held June 21 in Flowers v. Mississippi.

The Court broke “no new legal ground” in the case, but reaffirmed Batson v. Kentucky, 476 U.S. 79 (1986), by applying it “to the extraordinary facts of this case.”

Curtis Flowers was tried six times for four murders at a furniture store in a small Mississippi town. The first three trials were reversed due to prosecutorial misconduct or racial discrimination in jury selection under Batson. The fourth and fifth trial resulted in hung juries.

At his sixth trial – tried again by the same prosecutor – he again alleged the prosecutor's strikes of black jurors violated Batson. A divided Mississippi Supreme Court affirmed.

“First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck,” the Court said. “Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors.”

“The history of the prosecutor's peremptory strikes in Flowers' first four trials strongly supports the conclusion that his use of peremptory strikes in Flower's sixth trial was motivated in substantial part by discriminatory intent,” the Court said. “We cannot ignore that history. We cannot take that history out of the case.”

Third, “the State engaged in dramatically disparate questioning of black and white prospective jurors.” The State posed an average of 29 questions to black jurors and only one question to white jurors.

“That disparate questioning can be probative of discriminatory intent,” the Court said.

“By asking a lot of questions of the black prospective jurors or conducting additional inquiry into their backgrounds, a prosecutor can try to find some pretextual reason – any reason – that the prosecutor can later articulate to justify what is in reality a racially motivated strike,” the Court said. “And by not doing the same for white prospective jurors, by not asking white prospective jurors those same questions, the prosecutor can try to distort the record so as to thereby avoid being accused of treating black and white jurors differently.”

Fourth, the State struck at least one black juror who was similarly situated to white jurors who were not struck. One of the black jurors had various connections to witnesses in the case, which was understandable in a small town, the Court said. But at least three white jurors also had such connections and were not asked follow-up questions by the prosecutor.

“That is a telling statistic,” the Court said. “If the State were concerned about prospective jurors' connections to witnesses in the case, the State presumably would have used individual questioning to ask those potential white jurors whether they could remain impartial despite their relationships.”

“It is true that the State accepted one black juror for Flower's sixth trial,” the Court said. “But especially given the history of the case, that fact alone cannot insulate the State from a Batson challenge.”

“We need not and do not decide that that any of those four facts alone would require reversal,” the Court concluded. But “all of the relevant facts and circumstances taken together establish” a Batson violation.

Member Login

The content of this site does not constitute legal advice. The views expressed on this site belong to the original authors alone and do not necessarily reflect the views of the National Association for Public Defense, its members or affiliates. All content is provided "as is" for informational purposes only, and NAPD makes no representations as to the accuracy, completeness, currentness or suitability of information on this site. NAPD is not responsible for and does not endorse any materials, information, viewpoints, goods or services available through third party sites linked from this site.Tipping the Scales Toward Justice